The Nassau Guardian May 27, 2020
The Office of the Attorney General plans to appeal a Supreme Court ruling, which found that anyone born in The Bahamas to either a Bahamian mother or father is entitled to citizenship at birth, regardless of the parents’ marital status.
This contradicts the longstanding requirement that children born in The Bahamas out of wedlock to Bahamian men and foreign women must wait until 18 to apply for citizenship.
The ruling could impact the immigration status of many people in The Bahamas.
“The matter is not fully completed but in our view the matter has sufficient public importance to warrant an immediate application,” Attorney General Carl Bethel said yesterday.
In his ruling, Supreme Court Justice Ian Winder said the legal position “must be that every person born in The Bahamas after July 9, 1973, shall become a citizen of The Bahamas at the date of his birth if at that date either of his parents is a citizen of The Bahamas, irrespective of the marital status of the parents at the time of birth”.
Justice Winder’s ruling hinged on whether Article 14(1) of The Bahamas constitution is applicable when interpreting Article 6 of the constitution.
Article 6 provides that: “Every person born in The Bahamas after 9th July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date either of his parents is a citizen of The Bahamas.”
Article 14(1) reads: “Any reference in this chapter to the father of a person shall, in relation to any person born out of wedlock other than a person legitimated before 10th July 1973, be construed as a reference to the mother of that person.”
According to the ruling, government attorneys argued that “the clear interpretation of Article 14(1)…is that it applies to any provision that is capable of including the father”.
However, Justice Winder concluded that Article 14(1) should not be applied to Article 6.
“Article 6 was clearly intended to be expansive, as reflected in the opening words, ‘every person’,” his ruling reads.
“Article 6 was intended to afford an automatic right to citizenship in circumstances where one parent was a Bahamian citizen. The application (or misapplication) of Article 14(1) to Article 6 would take away that opportunity from the child born out of wedlock to access citizenship where one of his parents may be Bahamian.”
Winder’s ruling sided with the view expressed in 2013 by the Constitutional Commission, chaired by Sean McWeeney, QC, of which Bethel was also a member and signed the final report.
The commission noted that Article 6 is not meant to be discriminatory, but has been erroneously interpreted to result in discriminatory effects.
A 2016 referendum to address this matter and others concerning the ability of Bahamians to pass on their citizenship to children and spouses was overwhelmingly rejected by voters.
Under the proposed change to the constitution, a Bahamian father of a person born outside of wedlock, after the coming into operation of the amendment, would have been able to pass his citizenship to that person subject to legal proof that he is the father.
Had the referendum been successful, it would also have allowed for a Bahamian woman to pass her citizenship on to her child born to a foreign husband in a foreign country.
It would have also allowed women to pass on citizenship to their spouses, as Bahamian men are able to do.
A similar exercise in 2002 was also rejected.
While Justice Winder’s ruling spoke clearly to the issue of the right of a child born in The Bahamas out of wedlock to a Bahamian father and a foreign mother, he did not come to a conclusion regarding the applicants in the case, who include children purportedly born to Bahamian men out of wedlock to Jamaican and Haitian women.
The matter was adjourned to July 29, 2020, with Justice Winder citing the need for proof of paternity to make a determination.